from the United States District Court for the Southern
District of Mississippi
KING, DENNIS, and COSTA, Circuit Judges.
Costa, Circuit Judge.
opinion previously issued in this case is withdrawn, and the
following opinion is substituted in its place.
of sexual harassment typically involve the behavior of fellow
employees. But not always. Because the ultimate focus of
Title VII liability is on the employer's conduct-unless a
supervisor is the harasser, a plaintiff needs to show that
the employer knew or should have known about the hostile work
environment yet allowed it to persist, see Vance v. Ball
State Univ., 570 U.S. 421, 427 (2013) (citing
Faragher v. City of Boca Raton, 524 U.S. 775, 789
(1998))-nonemployees can be the source of the
harassment. See 29 C.F.R. § 1604.11(e)
("An employer may . . . be responsible for the acts of
non-employees, with respect to sexual harassment of employees
in the workplace, where the employer (or its agents or
supervisory employees) knows or should have known of the
conduct and fails to take immediate and appropriate
are one example of third-party harassers. See
generally Lori A. Tetreault, Liability of Employer,
Under Title VII of Civil Rights Act of 1964 (42 U.S.C.A.
§§ 2000e et seq.) for Sexual Harassment of Employee
by Customer, Client, or Patron, 163 A.L.R. Fed. 445
(2000). A leading case on third-party harassment addressed
whether Pizza Hut could be liable for customers'
harassment of a waitress. Lockard v. Pizza Hut,
Inc., 162 F.3d 1062, 1067, 1072 (10th Cir. 1998).
Casinos seem especially susceptible to these claims, as one
case addresses a high roller's harassment of a cocktail
waitress and another a card player's harassment of a
blackjack dealer. See generally Oliver v. Sheraton Tunica
Corp., 2000 WL 303444 (N.D. Miss. Mar. 8, 2000)
(former); Powell v. Las Vegas Hilton Corp., 841
F.Supp. 1024 (D. Nev. 1992) (latter).
case presents one of the more challenging situations in which
to apply this principle that an employer can be liable for a
hostile work environment created by nonemployees: a nurse
alleges that an assisted living facility allowed such an
environment to continue by not preventing a resident's
repetitive harassment. The unique nature of that workplace is
an important consideration. As we and other courts have
recognized, the diminished capacity of patients influences
whether the harassment should be perceived as affecting the
terms and conditions of employment. We must decide when the
allegations of harassment nonetheless become so severe or
pervasive that fact issues exist requiring a jury to decide
Gardner worked as a Certified Nursing Assistant at an
assisted living facility operated by CLC of Pascagoula, d/b/a
Plaza Community Living Center, from 2012 until she was fired
in 2015. Gardner is an experienced health aide.
Before working for CLC, she was a caregiver for several
facilities and in-home care providers, two of which
specialized in care for the mentally disabled. Gardner was
trained in defensive and de-escalation tactics for aggressive
patients. As one might expect, during her years as a
caregiver she often worked with patients who were
"either physically combative or sexually
what she experienced with one patient at the CLC facility
rose to a new level. J.S. was an elderly resident who lived
at Plaza between 2006 and 2014. He had a reputation for
groping female employees and becoming physically aggressive
when reprimanded. J.S. had been diagnosed with a variety of
physical and mental illnesses including dementia, traumatic
brain injury, personality disorder with aggressive behavior,
and Parkinson's Disease. J.S.'s long history of
violent and sexual behavior toward both patients and staff
included the following:
• J.S. had to be transferred from his initial residence
wing because he had become "combative" and had
physically assaulted his bedridden roommate during a dispute
over a television.
• J.S. was much more aggressive and sexually
inappropriate towards his female caregivers than even other
problematic nursing home residents; he would sexually assault
them by grabbing their "breast[s], butts, thighs, and
try[ing] to grab [their] private areas."
• J.S. asked for explicit sexual acts on a regular basis
and made lewd sexual comments toward female staff. He asked
female employees to engage in sexual activity with him
"[a]ll the time."
who became responsible for J.S.'s care, experienced these
types of inappropriate behavior from J.S. "[e]very
day." Gardner reported that J.S. would physically grab
her and make repeated sexual comments and requests. She and
other CLC employees documented J.S.'s behavior by